Brief facts necessary for decision of this petition for quashment are as follows. Ahmad Bakhsh complainant on 5-12-1982 in order to visit Multan purchased Railway ticket at Railway Station Kot Addu. At that time in order to take out cash, he opened his bag in the presence of one person. He purchased the ticket and boarded the train. The same person also entered the compartment alongwith Ahmad Bakhsh complainant. During the talk the said person disclosed his identity as Muhammad Abdullah son of Muhammad Sharif. The said person got down at Railway Station, Mahmood Kot and brought some sweet which were taken by the complainant on the asking of Muhammad Abdullah accused. The complainant went unconscious. He was admitted in the Muzaffargarh hospital. He regains consciousness in the hospital and found his bag missing which contained ornaments and cash. Ahmad Bakhsh complainant then lodged F.I.R. With Railway Police on 7-12-1982 and got a case registered under sections 328, 379, P.P.C. The Railway Police, Multan after registration of the case undertook investigation and reported to the Illaqa Magistrate that the accused was innocent. The Magistrate on 25-12-1982 cancelled, the case on the said police report.
Ahmad Bakhsh complainant filed a revision against the order, dated 25-12-1982 which was dismissed on 13-8-1983. He thereafter, filed a private complaint against Muhammad Abdullah alias Ghulam Haider accused on 29-3-1984. The Magistrate after recording the statement of complainant summoned the accused Muhammad Abdullah vide order, dated 2-5-1984. The accused filed revision against the said order which was accepted by learned Additional Sessions Judge, Muzaffargarh vide impugned order, dated 2-10-1984. It was held by the learned Additional Sessions Judge that there was delay in lodging of the F. I. R. That the report of Chemical Examiner was negative and that "an order of discharge although does not constitute a legal bar will practically have a same effect as an order of acquittal". It was held by the learned Additional Sessions Judge that "in the presence of an order of acquittal fresh proceedings in respect of the same offences will be entirely without jurisdiction while in the case of an order of discharge fresh proceedings will be improper and will not be permitted. As long as there is no provision of review, proceedings once taken on the merits cannot be re-opened". Reliance was placed on Abdul Hussain Sana v. Suwalal Agarwala and another PLD 1962 SC 242. On merits it was held by the learned Additional Sessions Judge that no material was available before the learned trial Magistrate at the time of passing the impugned order.' As such the process issued against the accused was held to be illegal. As a result of these findings not only the order, dated 2-5-1984 was set aside but the complaint was also dismissed as no supporting evidence had been led by the complainant to substantiate his allegation under sections 328 and 411, P.P.C.
2. I have heard, the learned counsel appearing on behalf of the parties. A perusal of the impugned order would show that the learned Additional Sessions Judge proceeded to decide the complaint on merits by discussing in detail the evidence which did not actually form part of the complaint itself. The conclusions arrived at by the learned Additional Sessions Judge were based on certain documents which were placed on the file of the revision by the accused. These documents were not part of the file of the private complaint and as such could not have been taken into consideration while disposing of the revision in hand. As such the conclusion arrived at by the learned Additional Sessions Judge on merits of the complaint cannot be upheld. I have gone through the judgment relied upon by the learned Additional Sessions Judge to hold that after discharge in a case, fresh proceedings in a complaint will be improper and could not be permitted.
The facts of the case in hand were different from those in the cited case law. A private complaint after cancellation of a criminal case and consequent discharge of accused is not barred. "Under the Criminal Procedure Code a Magistrate is entrusted with diverse duties and in discharging the same does not always function as a Court, conduct judicial proceedings or is amenable to the revisional jurisdiction. Some of his powers and duties under the Code are administrative, executive or ministerial and he discharges those duties' not as a Court but as a persona designata." "A Magistrate even while concurring in cancellation of a case is required to judicially examine the report submitted under section 173, Cr.P.C. And this has led to the impression that he must while doing so be acting and functioning as a Court. This obviously is mistaken impression." In view of the above observations, it was held by their Lordships of Supreme Court in Bahadur and another v.
State and another PLD 1985 SC 62 "though a Magistrate in cancelling a registered criminal case is required to act judicially, in that he has to act fairly, justly and honestly, duty common to the exercise of all state powers, there is no is before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. He does not function as a criminal Court".
3. It is, therefore, clear that the private complaint was competent and the earlier order of cancellation of the case could not be considered as an order of acquittal of the accused. As such I hold that the order of the dismissal of the complaint on merits without recording of evidence, by learned Additional Sessions Judge could not be sustained. At the same time, I am of the view that the order dated 2-5-1984 was not a speaking order nor was it passed after recording evidence in the complaint. As a result of the above position the impugned order dated 2-10-1984 is set aside.
The complaint of Ahmad Bakhsh petitioner is remanded back to the Illaqa Magistrate for further enquiry and proceedings according to law.